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US Visa Options For Professors And Researchers:

J-1 Visa, H-1B Visa, O-1 Visa, TN Visa

Introduction

Foreign professors and researchers coming into the U.S. have expanded the community of science and technology specialists, bringing with them new and innovative ideas. They have not only assisted their employers, but their contributions in the national interest of the United States have been immeasurable.

The challenge for professors and researchers and the institutions that employ them lies in selecting the appropriate pathway to bring and retain these individuals in the U.S. We present here an overview of some of the most commonly used nonimmigrant US visa options for professors and researchers.

A. The J-1 Visa

The J-1 visa category encompasses a wide range of foreign national exchange visitors, including, but not limited to, professors, research scholars and teachers who are coming to the U.S. as a participant in a designated exchange program for a specific purpose, which includes research, teaching, instructing and/or lecturing.

B. The Professor And Research Scholar J-1: Who’s Eligible?

There are two J-1 categories that cover Professors and Researchers:

J-1 Professor: An individual engaged primarily in teaching, lecturing, observing, or consulting at post-secondary accredited educational institutions, museums, libraries, or similar types of institutions. J-1 professors may perform research unless it is not allowed by the sponsor.

J-1 Research Scholar: An individual primarily conducting research, observing, or consulting in connection with a research project at research institutions, corporate research facilities, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions. J-1 Research Scholars may teach unless it is not allowed by the sponsor.

C. Period of Admission And Dependents

J-1 Professors and Research Scholars can extend their J-1 status for up to 5 years. Additionally, they cannot participate in the J-1 Professor or Research Scholar program again for at least 24 months once completing the 5 years.

The spouse and children under 21 of J-1 visa holders are eligible for the J-2 visa. The J-2 spouse is eligible for work authorization upon receiving the employment authorization document. The J-2 spouse must certify, however, that he or she is not obtaining the EAD in order to financially support the J-1 spouse.

D. J-1 Two-Year Home Country Residence Requirement And Waivers

Professors and researchers who enter the U.S. in, or change their status to J-1 status may be subject to the two-year foreign residence requirement. If subject to the two-year home residence requirement, they are ineligible to change their status in the U.S. to legal permanent resident or to any other nonimmigrant status or obtain an H, L or immigrant visa at a U.S. consulate abroad until they have returned to their home country or country of last residence and spent 2 years there.

J-1 professors and researchers may apply for a waiver of the two-year foreign residence requirement if they wish to remain in the United States beyond the end date of their program and change status to that of legal permanent resident or another nonimmigrant visa category or to return to the U.S. before the completion of the 2 years abroad.

E. H-1B Visa

The H-1B visa program is utilized by U.S. employers (including many University and research institutions) to employ professionals, including professors and researchers, in specialty occupations. A specialty occupation requires theoretical and practical application of a body of specialized knowledge and a minimum of a bachelor’s degree or the equivalent in the specific specialty.

F. The H-1B For Professors And Researchers: Who’s Eligible?

In order to be eligible to see an H-1B Visa as a Professor or Researcher, the following important conditions must be met:

The employer must be able to show that the position requires an individual with at least a Bachelor’s degree in a specific field

The foreign nationals must possess the required degree or its equivalent

The vast majority of professors and researchers meet the minimum requirements of the H-1B because a bachelor’s degree, if not a Master’s degree, is generally the minimum requirement for entry into these fields.

G. Period of Admission And Dependents

H-1B workers are admitted to the United States for an initial period of up to three years, which may be extended for an additional three years. A foreign worker can be in H-1B status for a maximum continuous period of six years.

H. The H-1B Cap And Lottery

There is an annual 65,000 numerical cap for H1Bs known as the “H1B cap”. When submitting the application, the employer must be sure that the cap is still open, i.e., the numerical limit has not been reached for the present fiscal year. During the last few years, the H-1B Cap was reached within the first week and USCIS had to run the H-1B Lottery.

However, there is a very important exemption to the H-1B Cap that benefits many professors and researchers – the foreign national may be exempt from the H1B Cap if the foreign national will be employed at:

1.an institution of higher education or a related or affiliated nonprofit entity or

2.a nonprofit or governmental research organization.

This important exemption allows most professors and many researchers to take advantage of the H-1B visa category.

DID YOU KNOW? The major disadvantage of the H-1B is the 6 year maximum limit. In order to overcome this limit, the process to obtain legal permanent residence should ideally be started by the time the foreign national reaches 4th year of H-1B.

I. O-1 Visa

The O-1 visa category allows foreign nationals with “extraordinary ability” in the sciences, education, business, athletics, the arts, motion picture or television to come to the U.S. to engage in official activity related to their field of endeavor.

The eligible foreign national must have sustained national or international acclaim. Extraordinary ability in science, education, business or athletics means a level of expertise indicating that the person is one of the small percentage who have risen to the very top of the field of endeavor. Extraordinary ability in the arts means “distinction” or a degree of skill and recognition substantially above that ordinarily encountered to the extent that a person described as prominent is renowned, leading, or well-known in the field of arts.

J. The O-1 Visa For Professors And Researchers: Who’s Eligible?

Professors and researchers generally must meet the evidentiary criteria for “extraordinary ability” in science or education. To be eligible, the foreign national must have:

1.Received a major, internationally recognized award, such as the Nobel Prize; or

2.At least three of the following forms of documentation:

a.Documentation of the alien’s receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor;

b.Documentation of the alien’s membership in associations in the field for which classification is sought, which require outstanding achievements of their members, as judged by recognized national or international experts in their disciplines or fields;

c.Published material in professional or major trade publications or major media about the alien, relating to the alien’s work in the field for which classification is sought, which shall include the title, date, and author of such published material, and any necessary translation;

d.Evidence of the alien’s participation on a panel, or individually, as a judge of the work of others in the same or in an allied field of specialization to that for which classification is sought;

e.Evidence of the alien’s original scientific, scholarly, or business-related contributions of major significance in the field;

f.Evidence of the alien’s authorship of scholarly articles in the field, in professional journals, or other major media;

g.Evidence that the alien has been employed in a critical or essential capacity for organizations and establishments that have a distinguished reputation;

h.Evidence that the alien has either commanded a high salary or will command a high salary or other remuneration for services, evidenced by contracts or other reliable evidence.

If the criteria does not readily apply to the beneficiary’s occupation, the petitioner may submit any comparable evidence in order to establish the beneficiary’s eligibility.

K. Period of Admission And Dependents

A petition for O-1 status can be approved for an initial period of up to 3 years, or the time necessary to accomplish the event or activity. O-1 status can be extended in one year increments if it is for the same event. If the petition is for a different position with the same employer or for a new employer it is considered a new “event” and the petition can be granted for another three years. The O-1 can be extended indefinitely.

The spouse and children under 21 of O-1 visa holders are entitled to the O-3 visa, and they are not authorized to work in the U.S.

The O-1 is a great option for Professors and Researchers who have participated in the J-1 program and are now subject to the 2-year home residence requirement. Those who are subject to the home residence requirement and have not obtained a waiver or have not completed the requirement can obtain an O-1 visa to work in the U.S.

L. TN Visa

The TN nonimmigrant visa is available to citizens of Canada or Mexico to be employed in professional positions in the U.S. as a result of North American Free Trade Agreement (NAFTA). College/University and Seminary Teachers and Professors are eligible for the TN as are researchers in a variety of scientific and technical fields.

M. The TN For Professors And Researchers: Who’s Eligible?

Professors and researchers from Canada or Mexico may work in the U.S. under the following conditions:

Applicant is a citizen of Canada or Mexico

Profession is on the NAFTA list

Position in the U.S. requires a NAFTA professional

Mexican or Canadian applicant must work in a full-time or part-time job for a U.S. employer (self-employment is not permitted)

Canadian or Mexican citizen meets the minimum qualifications for the position

Most, if not all the listed professions for which one would qualify as a Professor or Researcher requires a minimum of a Bachelor’s or Licenciatura Degree. If a baccalaureate is required, experience cannot be substituted for that degree. Some occupations have alternate criteria to a bachelor’s degree, whilst some other occupations require experience in addition to the degree.

TN status for Mexican or Canadian citizens can be obtained fairly quickly, but cannot be used for tenured or tenure-track professors or physicians that are engaged primarily in the direct treatment of patients.

N. Period of Admission And Dependents

The maximum period of admission into the U.S is three years and extensions can be granted in 3 year increments. The TN can be extended indefinitely. However, those applying for the TN must able to show that they continue to have nonimmigrant intent.

The spouse and children under 21 of those in TN Status are eligible for the TD visa. TD visa holders are not authorized to work in the U.S.

DID YOU KNOW? The H-1B1 and the E-3 are 2 other visa categories created specifically pursuant to free trade agreements between the U.S. and other countries. The H-1B1 is specifically for citizens of Chile and Singapore and the E-3 is specifically for citizens of Australia. Both are great options for Professors and Researchers.

Conclusion

Foreign national professors and researchers have several viable options to be able to come to the U.S., and must weigh all the options before deciding on the visa to pursue.

We’ll analyze your specific situation and recommend the most effective strategy based on our attorneys’ near 100% success rates.

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